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Comments of the Bazelon Center for Mental Health Law, National Association of Protection and Advocacy Systems, Disabilities Law Program of Community Legal Aid Society, Inc., Delaware and National Low Income Housing Coalition on Supportive Housing Program: Proposed Rule

Docket No. FR 4616-P-01; HUD-2004-0001

Introduction

For more than 30 years, the Bazelon Center for Mental Health Law (Bazelon Center) has focused on the development of community-based services and supports to keep people with severe mental illnesses from ending up homeless, incarcerated or institutionalized. For the past ten years, with increasing trepidation, we have watched the development of a national policy on homelessness, occasionally commenting on the way in which federal agencies have misconceived the problems facing our constituents and created programs that fail to serve their housing and mental health service needs.

The National Association of Protection and Advocacy Systems (NAPAS) is the membership organization for the nationwide system of protection and advocacy (P&A) agencies. Located in all 50 states, the District of Columbia, Puerto Rico, and the federal territories, P&As are mandated under various federal statutes to provide legal representation and related advocacy services on behalf of all persons with disabilities in a variety of settings. The P&A system comprises the nation’s largest provider of legally based advocacy services for persons with disabilities. NAPAS facilitates coordination of P&A activities and provides training and technical assistance to the P&A network. These proposed regulations are of particular interest to NAPAS because many P&As advocate on behalf of individuals with mental illnesses who are trying to obtain and maintain housing in the community.

The National Low Income Housing Coalition (NLIHC) is dedicated solely to ending America's affordable housing crisis. NLIHC believes that every resident has a right to a variety of protections. The proposed rules would diminish an entire class of protections for one of the most vulnerable populations. Therefore, NLIHC opposes this draft rule and joins in these comments.

With publication of the above-referenced notice of proposed rule making, HUD has gone well beyond what Congress required in recent legislative enactments and seeks to re-order the relationship between project sponsors and homeless individuals and families in a fashion that undercuts important civil and due process rights.

Legislative and Regulatory History

Having all the rights and responsibilities of tenants is not only the objective of the McKinney-Vento programs, but must also be the guiding principle of the programs funded by that initiative. Participants in programs funded by HUD’s Supportive Housing Program (hereafter, “SHP”) should have substantive and procedural protections against eviction and termination that are similar to those of other tenants because that is how they will learn the skills necessary to survive in the mainstream rental market.

Congress established the SHP program in 1987, and reauthorized it in 1992,¹ making clear that its purpose was to “promote the provision of supportive housing to homeless persons to enable them to live as independently as possible.” ² Part of living independently is having the dignity and responsibility of holding a lease and having protections against arbitrary eviction.³ Congress also recognized this point when it enacted the Fair Housing Amendments Act of 1988,⁴ indicating that “the right to be free from housing discrimination is essential to the goal of independent living.”⁵ These two legislative mandates informed the current SHP program, whose regulations currently accord tenancy rights to participants and provide for termination “only in the most severe cases.”⁶

The Notice of proposed rule making (hereafter, the “Notice”) suggests that statutory changes require new regulations. While that may be true with respect to the specific items mentioned in the Background section of the notice, it is not true with respect to the changes proposed in the new 24 C.F.R. §583.325(a) and the deletion–without explicit reference in the preamble of the proposed rule–to the absolute obliteration of the “most severe cases” protection in the existing 24 C.F.R. §583.300(i).

The Notice suggests that these changes are “designed to improve the program.”⁷ In fact, they would do just the opposite, by increasing the power that providers hold over residents and reducing the substantive standards for termination. This is not a recipe for ending homelessness, but for “creaming,” and for housing only those people who are easiest to house. In this manner, it is directly contrary to the President’s call to end chronic homelessness.

The Federalism Impact of the Proposed Rule

I have written elsewhere⁸ about the corrosive effect of diminishing the rights of people with mental illnesses in “specialized” housing programs. I criticized programs that deny that they are providing housing, and thus subject to state landlord-tenant and federal civil rights laws, pointing out that

Most state laws hold that a landlord-tenant relationship is created when, with or without a written lease, one party pays some amount of rent, is required to abide by the core responsibilities of tenancy, and is given a right to use and occupy a dwelling. By that definition, most consumers occupying housing units administered by [a mental health agency] will be considered tenants, and given the concomitant protection of state and federal law.9

Executive Order 13132 prohibits HUD from “publishing any rule that has federalism implications if the rule...is not required by statute, or the rule preempts State law,”¹⁰ except in limited circumstances. The proposed rule, which is not required by federal statute but which HUD merely wishes to publish, poses the very real risk of undermining a number of state court judicial decisions which hold programs like SHP to be subject to state landlord-tenant laws.¹¹ HUD’s certification to the contrary is not accurate.

 The Illogic of the Proposed Rule

 Both the Administration’s initiative to end chronic homelessness and the President’s New Freedom Commission on Mental Health¹² recognize the primacy of stable, permanent housing as the cornerstone of good mental health and avoidance of homelessness. Why on earth would HUD propose to put these vulnerable people at risk of homelessness again by changing the settled and well-conceived nature of the SHP program?

 The country’s most successful approaches to ending homelessness are built on the cornerstone of the landlord-tenant relationship. Pathways to Housing has demonstrated that such outcomes are possible, even for people coming in directly off the street, and even in a hyper-inflated market like New York.¹³ The key has been the provision of permanent housing (with a lease and a key for the resident) and comprehensive, but entirely voluntary mental health, addiction and other services. Pathways “allows clients to determine the type and intensity of services or refuse them entirely.”¹⁴

The Pathways study attempted to answer two questions: “First, can homeless individuals who live on the streets and who have psychiatric disabilities or substance addictions successfully obtain and maintain an independent apartment of their own without prior treatment? And second, do housing programs that require clients to participate in psychiatric treatment and maintain sobriety have a greater housing retention rate than a program that first offers clients access to independent living without requiring treatment?”¹⁵

The result: “After five years, 88 percent of those in the Pathways program and 47 percent of those in the comparison group remained housed....[T]enants of the Pathways program achieved greater housing tenure than those in the linear residential treatment settings when the analysis controlled for the effects of the other client variables in the equation. Specifically, the risk of discontinuous housing was approximately four times greater for a person in the linear residential treatment sample than for a person in the Pathways program.”

Most importantly, “[f]or the homeless clients in these programs, living in apartments of their own with assistance from a supportive and available clinical staff teaches them the skills and provides them with the necessary support to continue to live successfully in the community”¹⁶ Ironically, Pathways’ commitment to providing permanent housing equips its residents with the skills that will allow them to leave Pathways housing and find integrated housing on the private market.

The Corporation for Supportive Housing (CSH), a national financial and technical assistance intermediary, has worked with local programs in ten states ¹⁷ is a proven approach, with verifiable results.¹⁸ CSH has consistently advocated for approaches that link housing and services in ways that are not coercive - that is, housing is not contingent upon participation in services, but the availability of voluntary services and the engagement strategies will facilitate access to and retention of housing by people who might otherwise be rejected by most landlords. It has recently published a manual on the policy, legal and therapeutic ramifications of supportive housing.¹⁹ Uniformly, it calls upon providers to think about their residents and tenants, with full rights of tenancy.

The “Sneakiness” of the Proposed Rule (and Some Unintended Consequences)

 Mid-July is hardly the time to ask stakeholders to start thinking about a major change in the SHP program, given the likelihood that advocates will be on vacation during the summer. But that isn’t the sneakiest part of this proposed rule.

 Rather, clothing it as “designed to improve the program,” HUD erases the “most severe cases”²⁰ prerequisite for termination without even mentioning it in the Notice.²¹ The only reference is to the addition of a paragraph (d) concerning site control. As mentioned above, courts and providers have relied upon this directive to HUD in interpreting obligations under state landlord-tenant laws.²² What next? Will HUD be proposing that SHP is not housing at all, but “residential services,” which may or may not be subject to the Fair Housing Act?

The real concern is that the Notice will undercut the settled understanding of SHP rules, and will encourage providers to enter into loosely-worded “occupancy agreements” that contain all kinds of provisions that do not relate to the core obligations of tenancy, which include payment of rent, upkeep of the premises, respecting the quiet enjoyment of others and following basic health and safety rules.²³ Many homeless providers have incorporated highly detailed “house rules” concerning daily behavior into their occupancy agreements. These may include curfews, restrictions on guests, mandatory attendance at day programs, prohibitions on marriage or childbirth,²⁴ adherence to medication regimens, or regular therapy.²⁵ These substantial limitations on liberty and privacy may work at cross purposes with the eventual goal of independence. In most cases, they are only tangentially related to a person’s ability to fulfill the core obligations of tenancy. The law teaches, and common sense confirms, that tenants--with or without disabilities-- who are able to fulfill the core responsibilities of tenancy will maintain their housing for a longer period than those who cannot. Providers who offer voluntary, flexible supportive services are more likely to achieve this goal than those who do not.²⁶

Stripping SHP Residents of Procedural Protections Leaves Them Vulnerable to Arbitrary Eviction

As with evictions from public housing or private market housing, it is equally important in SHP housing that tenants have due process protections against arbitrary eviction. Courts that have considered this issue have spoken fairly uniformly in saying that all landlords must use state court eviction processes to protect the rights of tenants.²⁷

State courts with jurisdiction to hear eviction cases are well-suited to resolving disputes between SHP providers and residents, in that they routinely handle similar cases concerning public and private market housing. These courts must uniformly apply pre-existing rules to particular cases where violations have been alleged, and must measure whether the violations are serious enough under state law to warrant eviction. While states have adopted radically different substantive landlord-tenant laws, virtually every state now prohibits self-help eviction without judicial process

Courts must distinguish between what are essentially “institutional facilities” and what are essentially “residential properties” Fischer v. Taub, 491 N.Y.S.2d 538 (Sup. Ct. App. Term 1984). In Fischer, the court found that the rent stabilization law did not apply to licensed adult care facilities where residents were not living “independently.” Court held that residents, by operation of the adult care licensing statute, held mere licenses, and therefore could not enjoy the protections of landlord-tenant law. In Metalsky v. Mercy Haven, Inc., 594 N.Y.S.2d 129, 130 (1993), however, where a resident with mental illness had lived in licensed community residence for 18 months, the court

reject[ed] Mercy Haven’s contention that because it is a ‘treatment program’ and not a ‘landlord’ it is entitled to utilize self-help in ejecting ‘undesirables’ from the community residence. While the court recognizes that Mercy Haven functions not only to provide shelter, but also to afford therapeutic and other support services, the provision of long term supervised shelter is an integral and primary function of this community residence.

When a tenant is unable to comply with the terms of a lease, even with accommodation, she is protected by state landlord-tenant law, which says that a tenant cannot be evicted without due process of law, and the uniform application of pre-existing rules to the particular situation.

Basic rules of fairness require that there be a formal process for termination of housing rights, but the Notice proposes only a loosely-written requirement for an internal administrative hearing process, which is apparently not reviewable by state courts. Fairness means that a participant know what program rule she violated, and what acts or events led to the program violation. Fairness also demands that there be a forum for the participant to tell her side of the story to an unbiased decision-maker who can at the least determine if the offensive conduct actually took place, and if it did, whether it truly constitutes a sanctionable offense. This principle has been explicitly recognized in the context of mental health consumers by a number of state and federal courts.²⁸

In addition to the protections available in state courts, HUD need not look far to find a model for informal hearings that honor the minimum due process principles that are appropriate for protecting vulnerable residents. The informal hearing requirements for the Housing Choice Voucher program ensure a “level playing field,” because they require the provider to state the reason for the termination and provide other elements of due process that will eliminate arbitrary decisions to terminate. HUD would do well to extend the principles of this program to SHP.

Conclusion

The promise of full integration of consumers into the community depends on equal treatment. Under such a scenario, access to housing would be a function of an individual's ability to comply with the same rules of tenancy that apply to all tenants: payment of rent, keeping an apartment in clean condition, abiding by terms of the lease and not disturbing neighbors. With these rights come a full panoply of responsibilities. Many consumers had their liberty dramatically curtailed in state mental hospitals. Their return to the community was supposed to herald a new day in which they would exercise choice and enjoy or suffer the consequences of those choices. Instead, the coercion experienced in the institution has, in many instances, followed them into the community, and threatens to undermine their independence and recovery.

Because the proposed SHP rule works this harm, it must be rejected.

Comments prepared by:

Michael Allen
Senior Staff Attorney
Bazelon Center for Mental Health Law
1101 15^th Street, N.W., Suite 1212
Washington, D.C. 20005-5002
Website: www.bazelon.org

 

Notes

1. Pub.L. 10-77, Title IV, §421, as added Pub.L. 102-550, Title XIV, §1403(a), Oct. 28, 1992, 106 Stat. 4013.

2. 42 U.S.C. §11381.

3. See, generally, www.csh.org (Corporation for Supportive Housing website).

4. 42 U.S.C. Section 3601 et seq.

5. H.Rep. 100-711 at p. 18, reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2179 (1988).

6. 24 C.F.R. §583.300(i).

7. 24 C.F.R. §583.300(i).

8. Michael Allen, Separate and Unequal: The Struggle of Tenants with Mental Illness to Maintain Housing, 30 Clearinghouse Review 720 (November 1996)(copy attached and incorporated herein by reference)

9. Id. at 733.

10. 69 Fed. Reg. 43488, 4391, col. 2 (July 20, 2004).

11. See, e.g., Mann v. 125 E. 50th St. Corp., 475 N.Y.S.2d 777, 124 Misc.2d 115 (City Civ. Court, 1984); Serreze v. YWCA of Western Massachusetts, 30 Mass.App.Ct. 639, 572 N.E.2d 581 (1991); Thomas v. Lenhart, 38 Conn.Supp. 1, 444 A.2d 246; Metalsky v. Mercy Haven, Inc., 594 N.Y.S.2d 129 (1993); Daniels v. Christofeletti, 542 N.Y.S.2d 482 (1989); Bosse v. Duval, Chancery No. 14076 (Circuit Court, Loudoun County, Virginia), Clearinghouse No. 47,977 March 6, 1992).

12. See Achieving the Promise: Transforming Mental Health Care in America (July 2003), available at
http://www.mentalhealthcommission.gov/reports/FinalReport/downloads/downloads.html

13. Sam Tsemberis & Ronda Eisenberg, Pathways to Housing: Supported Housing for Street-Dwelling Homeless Individuals with Psychiatric Disabilities, 51 Psychiatric Services 487, 489 (2000)

14. Id.

15. Id.

16. Tsemberis & Eisenberg, supra note 71, at 492.

17. California, Michigan, Illinois, Ohio, Minnesota, New York, New Jersey, Indiana, Rhode Island and Connecticut. See CSH website, at www.csh.org for more details on efforts in these states.

18. See, e.g., Dennis P. Culhane et al., Public Service Reductions Associated with Placement of Homeless Persons with Severe Mental Illness in Supportive Housing, 13(1) Housing Pol’y Debate 107 (2002).

19. See Corporation for Supportive Housing, supra note 28.

20. 24 C.F.R. §583.300(i).

21. 69 Fed. Reg. 43488, 4390, col. 2 (July 20, 2004).

22. Corporation for Supportive Housing, Between the Lines: A Question and Answer Guide on Legal Issues in Supportive Housing 37 (2001)”State landlord-tenant law applies whenever a tenant occupies property as a renter for more than 30 continuous days....State landlord-tenant law will usually govern leases and rental agreements, security deposits, the landlord’s right to enter the tenant’s unit, notices to change the terms of tenancy or to terminate of tenancy and evictions.”)

23. See, e.g., H.Rep. 100-711 at p. 30, reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2191 (1988).

24. The standard lease used by the Alliance for the Mentally Ill of Delaware (AMID), which operates under contract with the state MHA, contains the following addendum: “To the extent permitted by HUD regulations and federal and state laws, the marriage of tenant or birth of a child to tenant shall be deemed material non-compliance with this agreement is [sic] said family members reside with tenant at the dwelling unit specified above. Because of the communal nature of each site, the program cannot adequately deliver services to clients who marry or who have children.”

25. The AMID lease, supra n. 24, also contains the following provision: “Refusing to continue with mental health treatment means that I do not believe I need mental health services, which includes Woodmont Gardens housing. I understand that since I am no longer a consumer of mental health services, it is expected that I will find alternate housing. I understand that if I do not, I may face eviction.” After finding a legal services lawyer, Kristina, the woman described at the beginning of this article, was able to get back into her apartment. Shortly thereafter, she received a notice which said: “Residential Treatment was terminated in response to your decision to not adhere to the mutually agreed upon terms, rules and regulations of the treatment program, which were set up to ensure your safety and sobriety....In addition, you have clearly stated that you are not interested in the therapeutic support of [the apartment program], and are motivated primarily by housing needs. The [agency] provides treatment programs, not housing programs.” “...your occupancy of the apartment...is an integrated part of your treatment program...and not a separate program.”

26. Lexi Turner and Ann O’Hara, “Supported Housing and Services: A View From the Field,” Housing Center Bulletin, Volume III, No. 3 (May 1995).

27. See, e.g., Mann v. 125 E. 50th St. Corp., 475 N.Y.S.2d 777, 124 Misc.2d 115 (City Civ. Court, 1984); Serreze v. YWCA of Western Massachusetts, 30 Mass.App.Ct. 639, 572 N.E.2d 581 (1991); Thomas v. Lenhart, 38 Conn.Supp. 1, 444 A.2d 246; Metalsky v. Mercy Haven, Inc., 594 N.Y.S.2d 129 (1993); Daniels v. Christofeletti, 542 N.Y.S.2d 482 (1989); Bosse v. Duval, Chancery No. 14076 (Circuit Court, Loudoun County, Virginia), Clearinghouse No. 47,977 March 6, 1992).

28. Citywide Associates v. Penfield, 409 Mass. Sup.J.Ct. 140, 564 N.E. 2d 1003 (Mass. 1991) (Section 504 reasonable accommodation provision requires landlord to absorb minor repair costs and give an occasionally delusional tenant time to secure heightened services); Roe v. Sugar River Mills Assoc., 820 F.Supp. 636 (D.N.H. 1993)(Apartment complex is required to attempt to accommodate plaintiff's mental handicap before it can evict him on the grounds that he constitutes a threat to safety of others); and Roe v. Housing Authority, 908 F.Supp. 814 (D.Colo.1995)(Apartment complex is required to demonstrate that no reasonable accommodation would eliminate or acceptably minimize any risk posed by tenant with mental illness who exhibited abusive behavior before it can evict him on the grounds that he constitutes a threat to safety of others)